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TCPA Nonprofit Exemption Protects DialAmerica

October 12, 2015
By Michelle Amodio - Telemarketing Software Contributor

The Telephone Consumer Protection Act (TCPA) is once again making headlines as the many gray areas highlight auto dialers and how charities use them to solicit consumers. 

Federal judge Matthew F. Leitman of the Eastern District of Michigan dismissed a complaint filed against DialAmerica Marketing, Inc., alleging that the telemarketer violated TCPA. Even though DialAmerica is a for-profit telemarketing firm, the calls it placed on behalf of SOMI, a charitable organization, qualifies it for the Nonprofit Exemption under the TCPA.

DialAmerica called leads to sell discounted magazine subscriptions for SOMI, the proceeds of which were considered a charitable contribution. This meant consumers entered an agreement with SOMI, not DialAmerica.

“Here, DialAmerica acts for SOMI’s benefit, in SOMI’s interest and as SOMI’s common-law agent. Thus, DialAmerica calls 'on behalf of' SOMI when it makes telephone solicitations pursuant to the SOMI-DialAmerica Program,” the judge said.

Recipients of DialAmerica's calls can also donate directly to SOMI in lieu of purchasing magazine subscriptions, of which DialAmerica doesn’t receive a penny. Since the calls raise awareness for the SOMI, not DialAmerica, the program is not subject to TCPA rules, the judge said.

“Because so much of the content of DialAmerica’s calls to consumers is provided by and is about SOMI, DialAmerica is not delivering its 'own commercial message' when it solicits customers on DialAmerica’s behalf,” Judge Leitman said.

A lot of the TCPA news surrounds “implied consent,” and as such the FCC (News - Alert) published a more updated interpretation of “prior express consent.” Consent now “must be obtained via a prior, written and signed agreement specifically stipulating the use of automated or pre-recorded calls and text messages via auto or predictive dialers.”

Of course, nonprofits have their own exemptions. Calls made for a non-telemarketing, informational purpose, including calls by or on behalf of tax-exempt non-profit organizations, calls for political purposes and calls for other noncommercial purposes, do not require prior consent if they are made to a residential number.

Additionally, according to the FCC’s current website, with the exception of emergency calls or calls made with the prior express consent of the person being called, autodialers and any artificial or prerecorded voice messages may not be used to contact numbers assigned to patient lines in a hospital, paging service and emergency telephone lines, to name a few.

The TCPA creates a complex web of rules and regulations for telemarketers, which are aggressively enforced by private parties, as well as the federal and state governments. Internal audits can ensure compliance while navigating the complex waters of TCPA regulations. 

Edited by Rory J. Thompson

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